Dees v. State, 89 So. 95

MERRITT, J.

[1] It appears that by inadvertence the list of jurors furnished to the state and defendants from which to secure a jury in this ease to try the defendants contained the names of others than “all the regular jurors inpaneled for the week, who are competent to try the defendant,” in that it contained the names of two jurors who had been excused, and one whose name was improperly spelled, and that this error was not discovered until the number had been stricken, so that the remaining names constituted an insufficient number to legally comprise the jury. It was clearly the mandatory duty of the court to order, as was done in this cáse, that a correct list be made, and that the same be stricken as required by law. Section 32, p. 1040, Acts 1919, is mandatory, and, being such, no doubt prompted the trial court in pursuing the course it did.

[2] While we think no substantial injury was done the defendants by striking from such list, on account of the state having knowledge of the jurors it did not desire, this was equally true as to the defendant, who also had knowledge of those jurors undesired by the state. In the case of Sheppard v. State, 5 Ala. App. 178, 59 South. 333, which correctly decides that the provisions of said act are mandatory, it is further declared by Judge De Graffenried:

“Of course, if any juror is absent from the ’ court or is sick, and for that or any other valid reason is not qualified to sit as a juror on the trial- of a defendant, the name of such juror should be omitted from the list, and it is the duty of the court to require that his name shall not appear on the list.”

The trial judge, under the facts in this case, appears to have acted, not only on the legal, but the fair and just, course in the matter, and in so doing there was no error. His request for both the state and the defendants to withdraw the last strike was indicative of such fairness, and the refusal of the defendants to do so, in the light of all the facts, conclusively shows to us, as stated above, that the defendants have not been deprived of any of their substantial rights in impaneling a jury to try them.

[3] The court properly refused to permit the defendant Donnie May Dees to go into the details of a former difficulty with her husband. That he beat her unmercifully and threatened her life was allowed, but further than this was not competent. Harkness v. State, 129 Ala. 71, 39 South. 73; Willingham v. State, 130 Ala. 35, 30 South. 429.

[4] There was no error in refusing to permit the witness to testify as to the character of J. O. Long. The question, if proper, should have been directed to his “general character.” So. Ry. Co. v. Hobbs, 151 Ala. 335, 43 South. 844.

[5] Refused charges’ 1 and 5 were substantially covered by given written charge 3. Refused written charges 2 and 6 were substantially given in the court’s oral charge. Acts 1915, p. 815. Hardley v. State, 202 Ala. 24, 79 South. 362.

[6] Charge 10 is bad, in that the word “some” is used, instead of “great,” and for this reason was properly refused.

[7] Charge 11 is not. sufficiently clear in its’ meaning, and was properly refused.

There is no motion for a new trial in the record.

We find no reversible error in the record, and the judgment of the trial court is affirmed.

Affirmed.

<a=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Case Details

Case Name: Dees v. State

Court Name: Alabama Court of Appeals

Date Published: Feb 8, 1921

Citations: 89 So. 95; 18 Ala. App. 133; 1921 Ala. App. LEXIS 112; 3 Div. 275. [fn*]

Docket Number: 3 Div. 275. [fn*]

Court Abbreviation: Ala. Ct. App.